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‘Bail is rule, jail an exception’ does not apply in terror cases: Supreme Court
Bail in terror cases must be rejected as a “rule” when courts have reasonable grounds to believe that the charges are prima facie true, the Supreme Court held on Thursday in a judgment that prescribes a “twin prong” test, severely narrowing the scope of bail in Unlawful Activities Prevention Act (UAPA).
According to a bench of justices MM Sundresh and Aravind Kumar, the conventional idea in bail jurisprudence that the discretion of courts must tilt in favour of the oft-quoted phrase — “bail is the rule, jail is the exception” — does not find any place while dealing with bail applications under UAPA. In such instances, the bench noted, courts are merely examining if there is justification to reject bail.
It further underscored that the test for rejection of bail is quite plain under UAPA. “Bail must be rejected as a ‘rule’, if after hearing the public prosecutor and after perusing the final report or Case Diary, the court arrives at a conclusion that there are reasonable grounds for believing that the accusations are prima facie true,” it said.
It is only if the test for rejection of bail is not satisfied, the bench held, that courts would proceed to decide the bail application in accordance with the ‘tripod test’ or ‘triple test’ — whether the accused is a flight risk, can influence witnesses and tamper with evidence.
Citing Section 43D(5) of UAPA, the top court noted that the provision puts a complete embargo on the powers of the special court to release an accused on bail if there are reasonable grounds to believe that the allegations against the accused are prima facie true.
“The ‘exercise’ of the general power to grant bail under the UAPA is severely restrictive in scope,” said the court, adding UAPA provisions suggest that the intention of the legislature is to make bail the exception and jail the rule.
The judgment added: “The courts are, therefore, burdened with a sensitive task on hand. In dealing with bail applications under UAPA, the courts are merely examining if there is justification to reject bail. The ‘justifications’ must be searched from the case diary and the final report submitted before the special court.”
Discussing the “twin-prong test” while dealing with a bail plea of a man charged under UAPA, the bench noted that the question of ascertaining whether the accused is a flight risk or not; or whether he can influence witnesses and tamper with evidence will not even come up if he fails the first test and the court has prima facie satisfaction of his guilt.
“The question of entering the ‘second test’of the inquiry will not arise if the ‘first test’ is satisfied. And merely because the first test is not satisfied, that does not mean that the accused is automatically entitled to bail. The accused will have to show that he successfully passes the ‘tripod test’…” it held.
In its judgment, the two-judge bench relied on a coordinate bench’s decision in NIA Vs Zahoor Ahmad Shah Watali in 2019. The Watali judgment held that an elaborate examination or dissection of the evidence is not needed at the stage of whether bail is to be granted or not. Instead, courts are expected to record a finding based on broad probabilities regarding the accused’s involvement in the commission of the stated offence or otherwise, said this judgment.
Banking on the Watali judgment, the court on Thursday assessed whether “the test for rejection of bail is satisfied” in the present case and eventually dismissed the plea of the man from Punjab for allegedly promoting the Khalistani terror movement.
The bench affirmed the March 2023 judgment of the Punjab & Haryana high court, refusing to grant bail to Gurwinder Singh, allegedly a member of organisation “Sikh for Justice”, who was arrested in October 2018. The organisation was banned in India in 2019 as an unlawful association.
Rejecting his bail plea, the bench noted that the material available on record indicates Singh’s involvement in furtherance of terrorist activities, backed by the members of the banned terrorist organisation, in exchange of large sum of money through different channels.
“Mere delay in trial pertaining to grave offences as one involved in the instant case cannot be used as a ground to grant bail,” it further said.
(Courtesy:- Hindustan Times, 9 February 2024)
Supreme Court quashes Andhra HC order expressing disapproval of Collegium and castigating Jagan
The Supreme Court Friday quashed an Andhra Pradesh High Court order that voiced strong disapproval over the apex court Collegium transferring two Chief Justices and castigated Chief Minister Y S Jagan Mohan Reddy for his apparent attempts to undermine it.
A bench comprising Justices Bela M Trivedi and Pankaj Mithal set aside the observations made in the order passed by a single-judge bench of the high court and disposed of the matter.
The top court was hearing an appeal filed by the Andhra Pradesh government challenging the December 30, 2020 judgment by Justice Rakesh Kumar of the high court. The observations were made while adjudicating a plea seeking the judge’s recusal from a case involving a challenge to the auction of state land.
Justice Kumar had referred to the transfer of Andhra Pradesh Chief Justice Maheshwari by the Supreme Court collegium and said this could result in undue benefits for the government in the southern state.
“I am of the opinion that for a situation which is prevailing today, in which impartiality, integrity, honesty, unbiased etc. in the judicial system are being raised, to some extent, we are also responsible. Several instances we have noticed that immediately after demitting the office of judge, judges are provided with new assignments,” Justice Kumar said. “One can infer how the government in the state of Andhra Pradesh is proceeding. Firstly, an attack was made on the Legislative Council, thereafter another constitutional body, that is, the State Election Commission, and now, the High Court of Andhra Pradesh and even the Supreme Court is under attack by persons who are in power,” the judge wrote in his judgment.
(Courtesy:- Indian Express, 10 February 2024)
*Disclaimer: – Always check with the original copy of judgment from the Court website.
Legal News in this Weekly Legal Update are compiled by Team www.deepakmiglani.com
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